Ladd Everitt speaks about his confrontation with Professor Adam Winkler on his own blog. I think you can surmise from Everitt’s tone that the one aspect of Winkler’s book that really gets his goat is that it lent us credibility on an argument that Everitt finds abhorrent, which is that some gun control laws, even some still on the books today, originated for racist or xenophobic reasons. He runs around in circles trying to come to terms with Winkler’s book, rather unsuccessfully, when he sort of awkwardly stumbles into what I think is probably the meat of his argument:

It is therefore confusing that Winkler would assert, “I do think that gun laws historically have been tied to race and racism and we should take that seriously when we’re thinking about a gun control law today.” Why? If African-Americans have moved beyond the past and strongly support contemporary gun control proposals (which even Winkler acknowledges are not motivated by race), why should it be an issue?

Except the latest polling shows that support for gun control even among the black community has been slipping, and now stands at about 30% of blacks believing that supporting gun rights is more important than supporting controls (in contrast to 53% of whites). Everitt misses the point of enumerating rights, which is to put them outside the scope of the political process, and leave them retained where they belong and from whom they originate; the people. 65% of the population simply can’t get together and vote away the rights of the other 30%. So when some Americans have greater access to their rights than other Americans, this concerns me, regardless of whether or not a majority of people having their rights trampled on support it or not.

But Everitt actually misses the main reason why I think exposing the racist and xenophobic history of many of our guns laws is important — because we’re still living under many of them. The history of the Sullivan Act has been well documented, and is still active law in New York. A source in the previously linked law review article cites that it was meant to:

strike hardest at the foreign-born element . . . . As early as 1903 the authorities had begun to cancel pistol permits in the Italian sections of the city. This was followed by a state law of 1905 which made it illegal for aliens to possess firearms ‘in any public place’. This provision was retained in the Sullivan law.

It’s very important to discredit these laws as being abhorrent, and outside our tradition when it comes to how we treat constitutional rights. If the motivation for many gun control laws was disarming disfavored groups, rather than a heart-felt desire to improve public safety and lower crime, the courts may be more inclined to look skeptically on them. Indeed, as we have noticed with the latest Heller II case, where the Sullivan Act was cited, shows the importance of discrediting it and other laws on the books which share its history.

And that, folks, is probably what really has Everitt up in arms; our idea that many of these laws have racist origins is getting mainstream acceptance from the legal establishment. If Ladd is an astute observer, he will notice that this happened previously with the notion that the Second Amendment is an individual right rather than a collective right, and he is well aware how that ended for his cause. So here we go again, with another idea he finds abhorrent, gaining mainstream acceptance. Let us hope this ends the same way for him.

UPDATE: For the curious, the picture featured in this post is that of Big Tim Sullivan himself.

11 Responses to “Ladd Everitt Responds to Racial Issue”

I don’t think that it is coincidence that “organized crime” (the Mafia) really began to gain power in the early parts of the 20th century after working class and small business-owning immigrants in our Northeastern cities were disarmed. The “protection” rackets were only able to be effective when the thugs victims were powerless to resist.

Here in North Carolina, which has a much more difficult and expensive process than the one I enjoyed in Pennsylvania, 68.5% of the population is white. More than 90% of the active NC CHPs are issued to whites.

Maybe that isn’t the intent, but that is certainly the result. Can you say Disparate Impact?

We’re having quite a lively discussion with Ladd over at wagingnonviolence. Being able to engage him directly is a real pleasure. It’s amazing how connected the internet makes us all, even to our political adversaries. So far he’s said I’m lacking decency and insinuated that I have no respect for the hardships faced by my ancestors who fled or were killed by the Nazis, so I think I’m making progress!

I don’t have time to engage Ladd over at wagingnonviolence … but I can say I had several emails with him a few years ago. He got condescending rather quickly. At any rate, and I will only say this here (call me a “bad” person if you will), but in some small way it does my heart good to see Ladd’s panties all up in a wad over Winkler’s book.

I compared the number of white CHP holders to the number of non-white permit holders, and the number of whites in NC vs. the number of non-whites. By determining the percentate of whites in NC with a CHP to the percentage of non-whites in NC with a CHP, I was able to come up with the number 5. About 3.15% of white North Carolinians have a CHP, while 0.63% of non-white North Carolinians have a CHP. Divide 3.15 by .063 and you get just a tiny bit over 5.

If the motivation for many gun control laws was disarming disfavored groups, rather than a heart-felt desire to improve public safety and lower crime, the courts may be more inclined to look skeptically on them. Indeed, as we have noticed with the latest Heller II case, where the Sullivan Act was cited, shows the importance of discrediting it and other laws on the books which share its history.

This is a very important – and astute – observation.

As the various court challenges move forward, the judicial decision-making process will evolve. The most egregious restrictions – like D.C’s total home handgun ban and Chicago’s total gun range ban – were overturned on the basis of Constitutional doctrine. Alan Gura explained this principle in the context of discriminatory carry license practices when he said, “[J]ust as in a Free Exercise Clause case, the question is not the validity or efficacy of the religious practice, the question here is not whether the carrying of arms is a good idea—the question is whether carrying arms is constitutionally protected.”

In these early cases, the issue wasn’t whether or not the challenged laws were good or bad ideas, or whether they might have been supported by good faith data. Instead, these laws were struck down because the government lacked the power to enact them. The Constitution trumped other considerations.

However, less severe restrictions – such as limitations on magazine capacity or on specific types of weapons (e.g., so-called assault weapons or .50 caliber rifles, etc.) – may be impossible to overturn on a historical or textual basis. Since the burden imposed is less severe, the underlying rationale for these restrictions will become important. The courts will be faced with balancing the interests of public safety against the rights of individuals to be armed for self-defense. And objective data will play an important role in this balancing process.

Many of these sorts of restrictions cannot withstand this sort of objective scrutiny. We all intuitively understand that an AR-15 is not inherently more dangerous than a 12 gauge shotgun; nor is a 20 or 30 round magazine more dangerous than one holding only 10 rounds. We also understand that self-defense is compromised when we are unable to use the most effective tools.

The Heller II case was a prime example of what happens when only one side presents objective data. The government offered flawed studies while the plaintiffs argued legal principles. Data on the alleged dangers of certain weapons were not challenged. The judges might very well have reached a different conclusion if they had been presented with alternative facts. Unfortunately, now that an important appeals court has ruled – as a matter of law – that AR-15s and large magazines enjoy no Constitutional protection, it may be impossible to challenge the legislative findings that were used to enact their prohibition.